Private Law Theory

ABSTRACT
This essay discusses the problematic application of the European Union’s Rome II Regulation to cross-border torts, namely those in which conduct occurring in one state causes injury in another state. The general lex loci damni rule of Rome II (Art. 4(1)) mandates the application of the law of the state of injury to these torts, unless they fall under one of the exceptions authorized by Rome II. Article 7 provides such an exception by allowing the tort victim to opt for the law of the state of conduct (lex loci delicti commissi). Obviously, the victim will exercise this option only when that law is more favorable to the victim than the law of the state of injury. For a variety of reasons explained in this essay, this is a commendable solution.

Unfortunately, Article 7 confines this solution to ‘environmental’ torts. Victims of other cross-border torts, such as human rights abuses or infringements of personality rights, may not avail themselves of this option and – more often than not – they cannot fit their case into one of the other lex loci damni exceptions. As a result, large business entities who act in a developed country in violation of that country’s high standards of conduct and cause injury in a less developed country with much lower standards can walk away virtually unaccountable and undeterred. They can easily write off as a cost of doing business the meager compensation or small fines they may have to pay under the law of the country of injury.

To address this problem, as well as other problems encountered in the application of Rome II to cross-border torts, this essay proposes an amendment of Article 7, which would: (1) expand the article’s scope to encompass all cross-border torts, including human rights violations and infringement of personality rights; (2) reverse the starting point of the choice-of-law process by making the lex loci commissi the default rule; and (3) allow the application of the lex loci damni through an exception that may be invoked only by the tort victim and only if the occurrence of the injury in the particular state was objectively foreseeable.

Symeonides, Symeon, Rome II and Cross-Border Violations of Human Rights, Infringements of Personality Rights, and Other Cross-Border Torts, (2022) 23 Yearbook of Private International Law 171–210.